S. Davis v. PPB ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Steven Davis, :
:
Petitioner :
:
v. : No. 861 C.D. 2020
: Submitted: April 1, 2021
Pennsylvania Parole Board, :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: February 15, 2022
Steven Davis (Parolee) petitions for review of a decision of the
Pennsylvania Parole Board (Board) that denied his petition for administrative review
of the Board’s decision recommitting him to a state correctional institution (SCI) as
a convicted parole violator (CPV) for six months and declining to award him credit
for the time he spent at liberty on parole because of unresolved drug and alcohol
issues. Parolee contends that the Board’s finding that he has unresolved drug and
alcohol issues is not accurate or supported by the record. Finding this matter to be
moot, we dismiss the petition for review.
1
This matter was assigned to the panel before January 3, 2022, when President Judge
Emerita Leavitt became a senior judge on the Court.
On February 27, 2014, Parolee was found guilty of possession of a
firearm by an unauthorized person; discharge of a firearm into an occupied structure;
and possession of drugs with intent to manufacture, sell, or deliver.2 Certified
Record (C.R.) at 1. The Delaware County Court of Common Pleas (Delaware
County Court) sentenced him to an aggregate term of four years to eight years in an
SCI. Id. at 1-2. At that time, his maximum sentence date was February 7, 2021. Id.
On November 7, 2017, Parolee was released on parole.3 C.R. at 7. On
May 16, 2018, the Easttown Township Police Department was dispatched to the
local Recovery Centers of America4 for a disturbance. C.R. at 14 (affidavit of
probable cause). Staff at the center alleged that Parolee had become verbally
aggressive and requested his removal from the property. The police found Parolee
with 15 pills, 12 of which were identified as controlled substances for which Parolee
could not produce a prescription. C.R. at 14. He was arrested, processed, and
released. Id. Ultimately, Parolee was charged with possession of controlled
substances and possession of drug paraphernalia in the Chester County Court of
Common Pleas (Chester County Court). Id. at 66.5
2
Additionally, his probation was revoked based on possession of a controlled substance,
and he was sentenced to a term of incarceration. Certified Record (C.R.) at 1. He was also
sentenced to several years of probation for possession of a weapon, recklessly endangering another
person (four counts), and theft by unlawful taking. Id. at 3.
3
By that time, his maximum sentence dates on the two drug charges had expired. C.R. at
2. Thus, he was paroled on the two firearm offenses. Id. at 7.
4
On May 14, 2018, following a positive urinalysis for numerous controlled substances,
Parolee’s parole agent directed him to enter outpatient treatment. C.R. at 26. Recovery Centers
of America is presumably the outpatient treatment center Parolee entered.
5
Parolee posted nominal bail of $1.00 on June 27, 2018. C.R. at 66.
2
The Board issued a detainer warrant on June 15, 2018, and Parolee was
incarcerated that day. C.R. at 15, 17. By decision recorded on July 31, 2018, the
Board detained Parolee pending disposition of the new criminal charges. Id. at 21.
On September 27, 2018, the possession of controlled substances charges were
withdrawn, and Parolee pleaded guilty to possession of drug paraphernalia. Id. at
67. He was sentenced by the Chester County Court to one year of probation and
ordered to undergo a drug and alcohol evaluation and complete recommended
treatment. Id.
The Board issued a notice of a parole revocation hearing to Parolee due
to his new conviction. C.R. at 29. Parolee waived his right to a panel hearing, and
the case was heard by a hearing examiner on November 11, 2018. Id. at 31, 33. At
the hearing, Parolee acknowledged that he had a drug and alcohol problem. Hearing
Transcript (Hr’g Tr.) at 9-11; C.R. at 41-43. He testified that following his arrest on
May 16, 2018, he immediately checked himself into a drug and alcohol treatment
center in Bridgeton, New Jersey. Id. at 9; C.R. at 41. He completed inpatient
treatment and was set up for outpatient treatment when the Board issued the detainer
warrant. Id. at 9, 11; C.R. at 41, 43. Further, he set up a home plan with his sister,
and a friend was helping him find employment. Id. at 11; C.R. at 43. Parolee
asserted that he does not “need to be sitting [in] State Prison over a paraphernalia
[conviction].” Id. at 12; C.R. at 44. He claimed that the paraphernalia was the
cellophane on a cigarette pack.6 Id. at 10; C.R. at 42. He stated that he just had a
“small slipup with some pills and an empty bag.” Id. at 12; C.R. at 44. As such, he
demanded to be released immediately. Id. at 13; C.R. at 45.
6
There is no description of the drug paraphernalia contained in the charges.
3
The hearing examiner explained that immediate release was not
possible, as the Board’s decision is not based solely on the new conviction, but on
Parolee’s supervision history; then, a report is generated, and it goes to the Board
for consideration. Hr’g Tr. at 14; C.R. at 46. Parolee stated that his parole officer
was present and should be able to “generate a Board action.” Id. at 15; C.R. at 47.
The hearing examiner responded that the parole officer was not a Board member,
and that, instead, the parole agent may only act after receiving instructions from the
Board. Id. Parolee complained that he did not deserve to be treated like this “[f]or
an empty bag.” Id. at 16; C.R. at 48.
By decision mailed on January 9, 2019, the Board recommitted Parolee
as a CPV to serve six months’ backtime in an SCI due to his new conviction. C.R.
at 75-76. The Board stated that Parolee exhibited “[p]oor adjustment under
supervision.” Id. at 75. It therefore directed that Parolee be evaluated for drug and
alcohol treatment and participate in any treatment deemed appropriate, and that he
be listed “for reparole review on the next available docket.” Id. In its discretion,
the Board denied credit for the time that Parolee spent at liberty on parole based on
his “unresolved drug and alcohol issues.” Id. The Board recalculated Parolee’s
maximum sentence date as September 15, 2021. Id. at 76.
Parolee filed a pro se administrative remedies form. C.R. at 77-78. He
complained that he had already served six months of backtime as of December 15,
2018, and that the Board should have given him an automatic reparole date, instead
of reviewing him for reparole at a later date. Further, he claimed that SCI-Coal
Township has him listed on the June 2019 parole docket. At the latest, he claimed
he should be on the February 2019 parole docket. He also asked why his original
4
maximum sentence date was extended by seven months, and further asserted that the
Board cannot extend a sentence date handed down by a judge. Id. at 78.
By decision mailed on August 7, 2020, the Board responded by denying
Parolee’s administrative appeal. C.R. at 80-81. First, the Board determined that
Parolee’s challenge to his reparole eligibility date was moot, because following
Parolee’s appeal, he was interviewed and granted reparole; however, the Board
rescinded the grant of reparole when Parolee committed a misconduct. Id. at 80.
Second, the Board explained how it recalculated Parolee’s maximum sentence date,
noting that when he was paroled on November 7, 2017, there were 1,188 days
remaining on his original sentence. Parolee was detained solely on the Board’s
detainer for 104 days from June 15, 2018 (the date of the Board’s warrant), through
September 27, 2018 (the date of sentencing on the new conviction), and subtracting
104 days from 1,188 days left 1,084 days remaining on Parolee’s original sentence.
Because the new sentence was a probationary term, Parolee became available to
serve his original sentence immediately upon his sentencing on September 27, 2018.
Adding 1,084 days to that date yielded a recalculated maximum sentence date of
September 15, 2021. Accordingly, the Board concluded that it did not err and
affirmed its prior decision.
Parolee petitions for review to this Court, raising one issue.7 He claims
that the Board abused its discretion when it declined to award him credit for the time
that he spent at liberty on parole for the reason that he has unresolved drug and
alcohol issues, which reason he asserts is not accurate or supported by the record.
7
This Court’s review of the Board’s decision is limited to determining whether the
necessary findings of fact are supported by substantial evidence and whether there was an error of
law or a constitutional violation. Walker v. Pennsylvania Board of Probation and Parole, 729
A.2d 634, 637 n.4 (Pa. Cmwlth. 1999).
5
At the outset, we must first address the issue of mootness.8 As outlined
above, in this case, Parolee’s maximum sentence date has already expired. This
Court has explained that “the expiration of a parolee’s maximum term renders an
appeal of a Board revocation order moot.” Taylor v. Pennsylvania Board of
Probation and Parole, 746 A.2d 671, 674 (Pa. Cmwlth. 2000). We will dismiss an
appeal when the occurrence of an event renders it impossible for this Court to grant
the requested relief. Id. We will refuse dismissal only if the issues involved are
capable of repetition yet likely to evade review and are of important public interest,
or where a party will suffer some detriment without this Court's decision. Id.; Sands
v. Pennsylvania Board of Probation and Parole, 396 A.2d 914, 915 (Pa. Cmwlth.
1979).
Because the maximum date of September 15, 2021, on Parolee’s
original sentence has passed, and he is no longer under the custody and control of
the Commonwealth, the instant appeal is moot. Although the credit issue that
Parolee raises in this appeal is likely capable of repetition, it will not evade review
and has been addressed in a number of other appeals from Board decisions denying
administrative relief. Parolee will not suffer any detriment without this Court's
decision because he is no longer serving his original state sentence and we cannot
grant the requested relief.9
8
See, e.g., Department of Public Welfare v. Kallinger, 615 A.2d 730 (Pa. 1990) (“AND
NOW, . . . the Court, sua sponte, dismisses this appeal as moot.”).
9
Additionally, even if the instant matter is not deemed to be moot, the Certified Record in
this matter demonstrates that Parolee has waived his claim on appeal. Like the issue of mootness,
we may sua sponte raise the question of issue preservation. Pergolini v. Pennsylvania Board of
Probation and Parole (Pa. Cmwlth., No. 504 C.D. 2019, filed January 13, 2020), slip op. at 5; see
Pa. R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an unreported
memorandum opinion of the Commonwealth Court filed after January 15, 2008. Non-precedential
(Footnote continued on next page…)
6
Accordingly, the petition for review is dismissed as moot.
MICHAEL H. WOJCIK, Judge
decisions . . . may be cited for their persuasive value.”). Section 703(a) of the Administrative
Agency Law provides that, although a party is not precluded from raising a question about the
validity of a statute in an appeal, a “party may not raise upon appeal any other question not raised
before the agency . . . .” 2 Pa. C.S. §703(a). Pa. R.A.P. 1551(a) similarly provides, with several
exceptions not applicable here, that “[n]o question shall be heard or considered by the court which
was not raised before the government unit.” “The law is well settled that issues not raised before
the Board either at the revocation hearing or in the petitioner’s administrative appeal are waived
and cannot be considered for the first time on appeal.” Chesson v. Pennsylvania Board of
Probation and Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012). In Parolee’s administrative remedies
form and the accompanying statement, he does not raise any claim that the Board’s reason for
denying him street time credit was an abuse of discretion. C.R. at 77-78. The Board’s denial of
street time credit and its stated reason is not even mentioned. As such, Parolee’s challenge to the
Board’s stated reason for denying him street time credit is waived.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Steven Davis, :
:
Petitioner :
:
v. : No. 861 C.D. 2020
:
Pennsylvania Parole Board, :
:
Respondent :
ORDER
AND NOW, this 15th day of February, 2022, the petition for review
filed in the above-captioned matter is DISMISSED as moot.
__________________________________
MICHAEL H. WOJCIK, Judge